Ancient Chinese curse: may you live in interesting times. This web site is my attempt to document, from my perspective, these "interesting times".

Monday, May 23, 2005

Extraordinary Circumstances: What Does It mean?

Over in this post I analyzed The Deal and explained how it is a huge win for the Dems. But I also said that the next stage of this fight is influencing the public perception of what this victory means. We are already winning on this front as the Republicans are acting like they lost and (most) Democrats are acting like they won.

The next step should be getting out in front on the meaning of "extraordinary circumstances".

This is the most nebulous part of the agreement and its future impact will depend greatly on how people come to interpret its meaning. Some have complained about this agreement by saying that the extremism of Brown and Owen are the very definition of "extraordinary circumstances."

I disagree.

I think "extraordinary circumstances" should be defined based on the "circumstances" of the nomination, not simply the characteristics of the nominee. In other words, a judicial nomination "circumstance" is "extraordinary" when the result of that nomination could have an "extraordinary" impact upon the future of the country.

The rulings of a Circuit judge, no matter how extreme, have little impact on the course of our nation. It is how that judgment is further adjudicated up the line that matters. It is how the Appeals Court treats it that will determine how "extraordinary" its impact will be on the "circumstance". And ultimately it is how the Supremes rule on its constitutional muster that will most effect the "extraordinary" nature of the "circumstance".

Thus, a Supreme Court nomination is more "extraordinary" than an Appeals Court nomination is more "extraordinary" than a Circuit Court nomination. Furthermore, if the balance of a appelate court (Appeals or Supreme) is on the line with any particular nomination, then that just makes that nomination all the more "extraordinary". A nomination by a Republican president to replace a liberal judge is more likely to impact the sway of the court and is thus more "extraordinary" than a nomination by that same president to replace a conservative judge. And finally, the nomination of an extremist/activist judge is more like to impact the future judgments of the court than a moderate and thus makes it even more "extraordinary".

I hope my point is clear. "Extraordinary" is defined according to the impact the nomination could potentially have on the course of the nation, not simply on the character of the individual nominee.

Democrats should rapidly spread the idea that this is what "extraordinary circumstances" means. This will lay the groundwork for the inevitable fight when it comes time to deal with Bush's Supreme Court nominees.